With or without you….? The EU Withdrawal Bill, the devolved administrations and legislative consent

The EU Withdrawal Bill passed its first parliamentary hurdle in the House of Commons last week. Both the Scottish Government and the Welsh Government tabled legislative consent memorandums making clear their opposition to the Bill as it stands. In a guest article, Professor Nicola McEwen highlights the key issues at stake for devolution, and considers some next steps.

What’s the issue?

One of the primary functions of the European Union (Withdrawal) Bill is to repeal the European Communities Act 1972, while preserving existing EU law. This is to ensure continuity as the UK exits the EU. The Bill achieves this by creating a new category of law – ‘retained EU law’. It also gives powers to ministers to use secondary legislation to modify retained EU law so as to ‘prevent, remedy or mitigate’ any deficiencies. Much of the opposition in the Second Reading debate in the Commons was focused on the breadth of these ministerial powers, and the extent to which they take power away from Parliament. But it is the effect of the legislation on the authority of the devolved parliaments and assemblies that has been the target of the Scottish and Welsh Governments.

The legislation that created the Scottish Parliament and the National Assembly for Wales required devolved laws to be compatible with EU law. In the absence of any other change, this requirement would be removed after Brexit, leaving these legislatures free to pass laws in devolved areas like agriculture, the environment and fishing that have been governed by EU law. However, Clause 11 of the EU (Withdrawal) Bill replaces the need for compatibility with EU law with a new constraint: devolved law must be compatible with ‘retained EU law’. The Bill also gives devolved ministers some powers to modify retained EU law in areas that are already fully devolved, but with the restriction that any changes made by the devolved institutions must be consistent with modifications made by the UK Government.

These restrictions are intended to be transitional. There is provision in the Bill to transfer further powers to devolved institutions – to release them from the new constraint – if, after negotiations between the UK and devolved governments, it is decided that a common policy approach isn’t necessary. For their part, the devolved governments have signaled a willingness to develop common approaches if needed, so long as this is achieved by agreement and legislative consent.

Given the strong possibility, in the current climate, that the governments are unable to reach agreement, the default position created by the Bill would leave authority for retained EU law with the UK Government and Parliament. In that event, the devolved legislatures may not have fewer powers than they have today, but the balance of power between them and the UK Parliament would have shifted in favour of the latter.

What happens next?

The legislative consent memorandums issued by the Scottish and Welsh Governments have set out why they cannot recommend consent for the Bill in its current form. There are three avenues open to the devolved governments to try to influence the Bill.

The first is via direct discussions and cooperation with the UK Government, relying on persuasion and soft power diplomacy. The recent experience of the Joint Ministerial Committee set up to agree a UK approach to Article 50 negotiations left the devolved governments deeply frustrated at the lack of discussion of, and influence over, the UK Government’s Brexit priorities. The result has been a loss of trust between the UK Government and the devolved governments, and a lack of confidence in the capacity of intergovernmental relations to provide more than very limited opportunities for influence.

The second avenue is to seek to amend the bill directly during the Committee stage, working with allies in the Westminster parliament. There are 35 SNP MPs who can be relied upon to pursue the Scottish Government’s agenda in the House of Commons. Ruth Davidson’s 13 Tory MPs may come under pressure to challenge provisions within the Bill if these are widely perceived as a threat to devolution. Welsh First Minister, Carwyn Jones, may be able to persuade his Labour colleagues in Westminster to seek changes to the Bill in line with Welsh Government preferences. Although the Bill passed its 2nd reading comfortably, the UK Government’s minority status might make it vulnerable to defeat in Commons’ votes if the opposition parties can present a unified front. The Welsh Government will also look to work collaboratively with the Lords, building on recent successes in improving Welsh devolution legislation.

The third avenue is via the devolved legislatures. Under the Sewel Convention, the UK parliament will not normally legislate on devolved matters, nor alter devolved competence, without the consent of the devolved legislatures concerned. Cross-party committees within the Scottish Parliament and the National Assembly for Wales are undertaking their own inquiries on the Bill’s effect on their respective devolution settlements. Their reports will highlight perceived flaws, suggest improvements and ultimately recommend a view on legislative consent.

One or more of these avenues may produce some modifications to the Bill. More substantial changes will depend upon the political will of the UK Government to reach compromise with the devolved institutions. Without significant changes, there is a realistic prospect that the devolved governments and legislatures will refuse consent for the Bill. That would not amount to a veto. As the Supreme Court made clear when ruling on the devolution issues raised in the Brexit appeal, the Sewel Convention acts as ‘a political constraint on the activity of the UK Parliament’ but it has no legal effect.

If consent is withheld, politics, not law, would determine what happened next. It would be for both the UK Government and the UK Parliament, after strategic evaluations of the political costs and benefits, to consider whether and how to heed the will of the devolved legislatures. Ultimately, it will be up to the electorates in Scotland and Wales to decide if it all matters.